"So what would happen if had gone on under President Bush?" Kilmeade asked.

"This did happen under President Bush with the NSA persuading — National Security Administration — persuading telecom providers to allow them to tap into it," Napolitano reminded. "Some of our colleagues in the media exposed it, and it stopped."

The ability to wiretap, he added, helps when officials want search warrants — or, in the event that they don't have time for warrants, they can force providers to cooperate with them for information. The proposal in question, the Washington Post reported, comes via a "government task force" and is "driven by FBI concerns that it is unable to tap the Internet communications of terrorists and other criminals."

"The search warrant system works," Napolitano argued, recalling that he's issued them at 3 a.m. in his living room. When there's evidence, the system works, and the new measure appears to be the FBI wanting to cut corners — a point Steve Doocy quickly agreed with.

Kilmeade, though, wasn't so sure. "How about you're Tamerlan, and you're with your brother," he posited. You're going to head to Times Square with five bombs in the back. You're trying to get access to his phone to find out who he's calling, where he's going. They can't find Judge Napolitano in his boxers in the middle of the night."Chase him down and stop him, and stop the car," Napolitano argued.

"Judge, it's not Spiderman!" Kilmeade replied. "We can't do that."

"The system works best when the constitution is followed," Napolitano insisted. "When it's not, the system is dependent upon the values of whoever is in office."